TWEET OR TWIBEL
The Small-Business Owner's Guide to Advertising Injury

Small-business owners are wise to tap into the power of customer-generated social media photos. By encouraging followers and fans to use your business's hashtag when they post pictures of themselves sporting your products, you create an organic marketing tool. With the hashtag in place, you can filter thousands of customer photos on Instagram or Twitter. And with a re-gram or retweet of the image, you connect with customers and create grassroots social media advertising.

It seems like a win-win. Your customers feel as though they are engaging with your brand in a meaningful way, their photo generates attention, and your business receives free content to market its products. But as with everything online, using customer photos also comes with risks.

If you use a customer's photo outside of the social media site you found it on, you could be sued for copyright infringement or misappropriation of their image.

Small business insurance can cover the costs of a misappropriation or copyright infringement lawsuit (including settlement or judgment costs and legal defense fees), but it doesn't give you carte blanche to be careless. It's better to know what you can and can't do with your customers' photos so you can avoid a legal disaster.

Here are some tips for using customer-submitted images.

Social Media Marketing: What's in a Hashtag?

A hashtag is a form of metadata that signifies specific keywords or topics. When users caption their photos with a hashtag, they appear in an archive of other images or posts with the same tag. Users can filter and find photographs easily in a sea of competing content.

Businesses have started to use customers' photos of their products in websites and advertising campaigns. Some retailers have even stated that when someone uses their brand's hashtag to caption the photo, that tag gives the business license to use the picture as it sees fit. However, this kind of disclaimer likely wouldn't hold water in court. That's because the person who took the photo still holds the copyright and publicity rights to it, regardless of the hashtag used.

The Risks Your Small Business Faces When It Uses Customer Photos

Your customers hold the copyrights to their photographs, even if those photos are posted publicly on social media. Twitter and Instagram can display their users' images on their sites because their policies grant them a non-exclusive license to the content. But other businesses that use these sites don't have the same benefit. The most they can do legally is retweet or re-gram the photo on the respective networking site.

Regardless of the caption used, your business could run into legal issues if you take a customer's photo and use it elsewhere, such as on your website, in press releases, or in print advertisements. That's because individuals retain copyrights to their pictures and have enforceable publicity right, which means…

If you profit from someone else's photo, you may owe a portion of your revenue to the copyright holder.

If you use someone's unauthorized image, you could be liable for privacy intrusion, even if the users voluntarily posted photos of themselves knowing that the images might be used to promote your brand.

Courts in California ruled that individuals who aren't celebrities can still claim economic injury when their image is used among people who recognize them (e.g., friends and family). Under common law, this means that a consumer could easily collect damages from your business, as long as they can prove that you used their picture without their knowledge.

Avoiding Misappropriation and Infringement Claims

So how can you use your fans' selfies without the legal headache? Dodge a social media marketing fiasco with these simple steps:

Never use customers' social media photos in print advertising campaigns that could generate significant revenue. If you want to use the photos for commercial purposes, you must have permission.

Only use photos that you can confirm are of the photographer. Otherwise, you'll have to track down permission from the subject of the photo as well as the photographer.

Only share customer photos on the social media site that the image was originally posted on. Most social networks permit you to share content on the site. Be sure to attribute credit to the creator of the image. If they ask you to remove the image from your page, remove it.

When in doubt, ask the user. You can't go wrong by covering your bases and attaining consent before you use an image that isn't licensed to you.

Bottom line: Uploading a photo to social media doesn't nullify copyrights or privacy rights. While you can use customer photos to promote your brand in some situations, be sure you do so mindfully and legally.

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